Constitutional Politics and the Conservative Court

A leading scholar in constitutional law examines the future path of the Supreme Court. The Court's right turn is nothing to celebrate, but liberals should welcome the return of issues to the political arena.

Ever since 1969, when President Nixon appointed Warren Burger to replace Earl Warren as Chief Justice, observers have been anticipating the emergence of a conservative Supreme Court and the end of an era of expanding civil rights and civil liberties. For years, the predictions turned out to be premature. It was the Burger Court, after all, that in the 1970s recognized a constitutional right to reproductive freedom and first concluded that discrimination on the basis of sex would receive careful constitutional scrutiny.

But now there can be no mistaking the reality: the Supreme Court has finally taken a sharply conservative turn. In the last few years the Court has opened the way toward greater government controls on reproductive choice and authorized the states to forbid homosexual relations. It has invalidated affirmative action plans and, at almost every turn, interpreted civil rights laws unfavorably to blacks and women.

For liberals and others concerned about these decisions, a conservative Court is obviously nothing to celebrate, but neither is it a reason to go into mourning or slip into nostalgia for the Warren era. While the Warren Court achieved historic advances, it also helped to generate a conservative political reaction and raised serious questions about the legitimate role of the judiciary in a democracy Paradoxically, a conservative Supreme Court may fuel wider engagement in democratic politics, and that renewed engagement may produce more lasting, legitimate, and fundamental change than a liberal Court could have achieved. We may already be seeing that pattern today on the issues of abortion and women's rights, but the phenomenon is far more general -- or so, at least, I shall suggest.

The Death of the Warren Court

The period was extraordinary probably unprecedented in the history of democratic government. Beginning in the early 1950s, a Supreme Court composed of rather elderly lawyers with life tenure, nearly all of them wealthy, white, and male, attempted to bring about serious social change in the interest of civil rights and civil liberties.

To recall the great cases of the Warren and Burger Courts today is like reading off the heroic battles of a war still fresh in living memory. Beginning with Brown vs. Board of Education, the Court invalidated racial segregation in schools, public transportation, even golf courses. In Baker v. Carr and Reynolds v. Simms, it called for reapportionment of state legislatures in line with the principle of one person, one vote. In Harper v. Board of Elections, it struck down the poll tax. In Mapp v. Ohio and Miranda v. Arizona, among many cases, it granted a multitude of new rights to criminal defendants. In Griswold v. Connecticut and Roe v. Wade, it recognized rights of sexual and reproductive privacy, including the right to obtain an abortion. In other cases, only slightly less well known, it banished prayer from the public schools, struck down many laws as impermissible sex discrimination, gave nonmarital children and aliens the right to be free from official discrimination, and offered extraordinarily broad protection to speech, including advocacy of crime, false statements about public officials, commercial advertising, and pornography.

MANY OF THE RIGHTS affirmed by the Court, though actually quite new, are now taken for granted, as if they had always been part of our constitutional heritage. Americans today understand the very concept of "rights" to include protection against discrimination on the basis of race and sex. Similarly, few doubt that their constitutional rights include broad protection of free expression and the vote. And as Judge Bork discovered to his dismay during his confirmation hearings, a generalized right of privacy is now firmly established in public belief. The Court's role in defining such rights was especially surprising in view of the framers' original understanding that the judiciary was to be "the least dangerous branch" (that is, the least radical). Similarly, the Court's own history, particularly during the New Deal period, gave no reason to anticipate that it would assume a leading role in reform. Indeed, the Supreme Court was for decades a principal target of progressive criticism on the theory, then widely accepted, that national policy ought not to be set by nine lawyers purporting to interpret an ambiguous document of the eighteenth century.

The Warren Court's rulings had many salutary effects, but they also preempted political solutions, raised troubling questions about the limits of judicial power, and galvanized opposition. In 1972 and 1980 successful Republican presidential candidates made the liberal Court a major issue. President Nixon's four appointments (Chief Justice Burger and Justices Powell, Blackmun, and Rehnquist) had a significant impact on the Court's decisions, but there was no wholesale departure from the Warren era. In the 1980s President Reagan and Attorney General Edwin Meese launched a broadside attack on the Warren and Burger Courts. Meese contended that the Court's decisions did not follow from the "original intentions" of the Constitution's framers and could not plausibly count as constitutional interpretation or even law. These decisions were inconsistent, Meese and other conservatives now said, with the premise of democratic self-government and often amounted to bad social policy as well. This was the line of thought that guided Reagan's selections of nominees to the Court -- not only the unsuccessful Bork nomination, but also the elevation of Justice Rehnquist to Chief Justice and the appointments of Justices O'Connor, Scalia, and Kennedy. By 1989 the predictions of a conservative majority had been fulfilled in decisions regarding civil rights, if not civil liberties.

Civil Rights. The most recent developments were presaged by the important decision in Bowers v. Hardwick (1988). A five-to-four majority rejected the argument that the Court's privacy cases should be taken to protect the right of consensual homosexual sodomy. The decision itself was not surprising, but few would have expected the contemptuous tone. Speaking for the majority, Justice White dismissed as "facetious" the claim that a right to engage in homosexual practices is "deeply rooted" in American history and tradition. Chief Justice Burger's concurrence quoted Blackstone's Commentaries (1765) for the startling proposition that consensual homosexual behavior is "an offense of 'deeper malignity' than rape."

By the end of 1988 term, the pattern was unmistakable. In the Webster case, which has drawn the most attention, four justices said that they would restrict Roe and allow regulation of abortion to protect fetal life during the first and second trimesters. The fate of Roe now appears to lie in Justice O'Connor's hands, and while her vote is uncertain, we should expect, at the very least, more restrictions on the practice of abortion.

Ranking in importance with Webster was the Court's decision in City of Richmond v. Croson to invalidate an affirmative action program adopted by the former seat of the Confederacy. Croson's precise reach is unclear, but it reveals that the Court will regard affirmative action programs with great skepticism and refuse to accept past social discrimination as sufficient justification. In general, the Court seems likely to allow affirmative action only if it is a narrowly tailored response to actual discrimination by the particular institution providing the remedy.

Webster and Croson were the Court's most visible rulings, but the most revealing were a series of decisions interpreting, not the Constitution, but civil rights statutes enacted by Congress. Time and again, the Court ruled against civil rights plaintiffs in seemingly technical but important cases. In Wards Cove, the most far-reaching of these decisions, the Court severely restricted its earlier, unanimous ruling in Griggs v. Duke Power. In the Griggs decision, written by Chief justice Burger in 1972, the Court had held that once a civil rights plaintiff showed a practice to have a disparate racial impact, the burden would shift to the defendant to demonstrate that "business necessity" justified the practice. In Wards Cove, by contrast, the Court held that even after the plaintiff showed a disparate impact, the burden remained with the plaintiff to show "an absence of legitimate justification." This striking departure from previous law will make it difficult for plaintiffs to win discrimination suits.

Remarkably, no black, female, handicapped, or other civil rights plaintiff achieved a significant victory in the past year. It is hard to point to more than a handful of significant victories by any such group in the past several years. (White plaintiffs have won affirmative action cases, but these are not exactly an exception.) The Court has not merely failed to interpret ambiguous precedents in favor of disadvantaged groups. On many occasions, it has restricted or abandoned, sometimes without saying so, well-established law. The Court's overriding theme is that the social status quo -- existing distributions of wealth and power -- should not be disturbed by either constitutional law or statute.

With increasingly firm insistence, the majority on the Court claims that the Constitution creates only "negative" rights, not "positive" ones, that is, only rights against state power, not rights to state assistance to prevent private acts of violence or to guarantee even minimal living conditions. In the past decade, the Court has often said that the Constitution does not create any rights of protection against starvation, homelessness, or indigency. The Court has even said that discrimination among groups of people receiving government benefits will receive only the most superficial scrutiny. To be sure, defining a more aggressive judicial role in guaranteeing positive rights would be extremely difficult. But it was still surprising to read the Court's ruling in DeShaney that the Constitution had no bearing on a social welfare agency's refusal to protect a two-year old child from severe beatings by his father after the service had received repeated warnings, from the child's mother, of imminent danger.

Civil Liberties. In the area of civil liberties, the picture is more cloudy The Court has been generally unreceptive to claims of right on the part of criminal defendants. Indeed, it has partly repealed the exclusionary rule, which had barred from trial any evidence obtained by police in violation of the Fourth Amendment's protection against unreasonable searches and seizures. Under the Court's revised rule, evidence is admissible if the officers act in "good faith." The Court has also given greater scope to government to impose the death penalty, even on teenagers and the mentally retarded.

On the other hand, the celebrated (and mostly symbolic) flag-burning decision, combined with the (questionable) ruling that the First Amendment protects dial-a-porn, indicates that the Rehnquist Court will rarely permit governmental regulation of speech on the basis of its content. But the Court's aggressive posture here may actually lead in unfortunate directions. The Court seems unlikely to allow any regulation of the speech "market" to reduce disparities of wealth and media access. Here, as elsewhere, the Court is skeptical of redistributions of wealth and power.

Two examples will illustrate the point. The first is the fairness doctrine, designed to ensure broad debate on the airways about public issues and upheld by the Warren Court on the ground that it promoted rather than undermined the purposes of the First Amendment. This Court might well find the fairness doctrine to violate freedom of speech. A second example is campaign finance regulation. The Court has been reluctant to permit campaign regulation that includes ceilings on individual and group contributions. Such regulation, now routine in Western Europe, might promote the goal of a well-functioning system of free expression, but it would require a different vision of our political life, as a deliberative process among political equals rather than a mere "political marketplace." In cases of this sort, invocation of the First Amendment to protect current distributions of speech "wealth" is destructive of democratic self-government.

This, then, is the picture that emerges from the recent decisions: a Court skeptical of privacy rights or general liberty interests, extremely reluctant to interpret the Constitution or federal statutes to protect criminal defendants or disadvantaged groups, broadly content with the status quo governing the distribution of wealth and freedom of speech, and generally unlikely to be at all adventurous in using the Constitution to go beyond the work of its predecessors.

The Constitution's Judicial Future

What might we expect from the Rehnquist Court in the near future? It is important to distinguish here between civil liberties and civil rights. No dramatic shift seems likely in civil liberties, particularly freedom of speech. Governments may have marginally greater power to impose the death penalty and to engage in searches and seizures. The Court may also permit more public funding of religious organizations, at least when they perform secular functions. But major departures in these areas would be surprising.

The Court is likely, however, to restrict the use of the Fourteenth Amendment's due process clause to protect general interests in liberty. The due process clause ("nor shall any state deprive any person of life, liberty, or property, without due process of law") is the basic source of judicial protection of privacy rights. Roe v. Wade will in all likelihood be restricted or even overruled. The Court may also restrain the powers of Congress in the name of state autonomy and occasionally invalidate congressional restrictions on the executive branch (though here the signals have been mixed, with the most recent cases indicating a limited judicial role). One might also expect a greater willingness to protect rights of contract and property against government regulation.

By far the most important developments will continue to take place in civil rights. Affirmative action is under severe strain. The Court will not find discrimination on the basis of race and sex to violate the Constitution unless the relevant law draws an explicit race or sex line or is clearly based on a discriminatory motivation. The Court's work here reflects a theory of "formal equality," as it is sometimes called. On this theory, a law will not be invalidated even if it has severe discriminatory effects; race or sex discrimination must be overt. The consequences are clear. If measures are taken to be discriminatory only when there is a "smoking gun," very few measures will be invalidated. The Court's hostility to affirmative action and deference to covert discrimination are united by a belief that there is nothing wrong with the current distribution of benefits and burdens between the sexes and the races.

The Court will also continue to be unwilling to use the Fourteenth Amendment's guarantee of "equal protection of the laws" to bar discrimination on the basis of handicap, sexual orientation, poverty, and age. The equal protection clause undergirded much of the work of the Warren and Burger Courts. Here, unquestionably, is where the Rehnquist Court differs most sharply from its predecessors.

Does the Court have a theory guiding its decisions? The answer is an emphatic "No." The rhetoric of "judicial restraint" has provided a popular rallying cry for some of the Warren Court's critics, but the term is notoriously difficult to define. Under almost any definition this Court is not consistently committed to judicial restraint. Judicial restraint is sometimes understood to mean respect for precedent, but in that respect the current Court is extremely adventurous. If "restraint" refers instead to an unwillingness to overturn acts of the legislature and executive, this Court's commitment is only selective. For example, the Court is more aggressive than its predecessors in striking down governmentally-adopted affirmative action programs and regulations affecting rights of private property.

THE COURT'S VARYING posture is most evident in the views of the Justice in some quarters most closely associated with judicial restraint -- the influential, creative, and extremely able Justice Scalia. Justice Scalia would invoke the Constitution to invalidate numerous congressional efforts in the area of separation of powers. For example, he voted to strike down the independent counsel act, which provides that someone not under the President's direct control must undertake prosecution of high-level presidential appointees. On the other hand, in his opinion in Webster, Justice Scalia argued that the Court in Roe had tried to resolve a politically divisive issue that should be dealt with democratically. But on affirmative action, where he favors overturning race-conscious programs through judicial action, Justice Scalia himself will not permit an equally divisive issue to be dealt with democratically. Here the Court's lack of restraint is especially disturbing, since it forecloses a political corrective.

It is not easy to identify any general set of ideas that would account for the results favored by Justice Scalia or the majority of the Court. The most fashionable theory, more extreme than the majority's view, finds dramatic expression in Robert Bork's The Tempting of America. Bork claims that the decisive factor is not majority will, but the "original understanding" of the Constitution, which supposedly provides plain answers to most hard questions of constitutional law. On this view, the judge's personal opinions are irrelevant. The good judge simply says what the law is, and lets the chips fall where they may

Without accepting Bork's theory, one might readily acknowledge that the text of the Constitution is binding and the ratifiers' understanding highly relevant. The "original understanding," however, is often ambiguous. The number of people ratifying constitutional provisions was large, and often their multiple views were inconsistent and imprecisely formed. The problem is compounded by the difficulty of deciding the breadth of constitutional principles. Was the equal protection clause -- written in broad terms -- meant to prevent discrimination only against blacks or against all racial groups? Against groups defined in terms of race and nationality? Race, nationality, and sex? Politically and socially disadvantaged groups in general? The historical record provides no clear answer.

The problem goes even deeper. The framers themselves may have intended to put in the Constitution, not their particular views, but general principles capable of change over time. If so, exclusive reliance on the original understanding is self-contradictory. The text self-consciously invites its interpreters to look elsewhere.

IN VIEW OF THESE difficulties, the original understanding cannot account for the current trends in the Court or supply a complete theory of the appropriate judicial role. For all the window-dressing, "originalism" is merely the latest version of formalism in the law: the pretense that one can decide hard legal questions by reference to someone else's value judgments. Here, as elsewhere, formalism is a dismal failure. It is no coincidence that the constitutional positions of the conservative members of the Court generally line up with the conservative wing of the Republican Party: greater constraints on government to adopt affirmative action programs but fewer restrictions on governmental power to aid religion; greater constraints on federal power but fewer intrusions on presidential power; no abortion rights but greater protection of property rights.

Because the Constitution does not contain instructions for its own interpretation, judges need independent interpretive principles to make sense of constitutional law. Probably the best start on such an approach, traced by John Hart Ely in Democracy and Distrust, views the role of a constitutional court through the lens of democratic theory. Our system is republican, not majoritarian; it contains a range of protections of rights and groups likely to be undervalued by majorities. Judicial intrusions, from this perspective, are necessary where the political process is least likely to be self-policing. Such an approach calls on the Court to be especially solicitous of rights of free expression and political representation, and it asks the Court to be especially protective of groups, such as racial minorities, women, the disabled, and perhaps the poor, who are likely to be politically mistreated. Of course, no general theory of the Court's role is a substitute for detailed inquiry into a plaintiff's claims and the specific constitutional provisions at issue. But Ely's approach is helpful in deciding where judicial review is likely to be most justifiable. The current Court, however, shows little interest in ideas of this sort.

A Hypothetical Court Agenda

No doubt some of the legacy of the Burger and Warren Courts is in considerable jeopardy. But even more important, we can now expect little help from the Court on the contemporary equivalents of the great issues that came before the Court in the past several decades.

To obtain some perspective on the Rehnquist Court, we might ask what the Court's agenda might have looked like in the 1990s if it had continued on the path the Warren Court set. In the Warren era, practices that earlier were widely accepted came to be seen as constitutionally abhorrent. What are the new candidates today? Theories recently proposed by lawyers, judges, and academics well-disposed toward the Warren Court suggest a number of possibilities. In describing these theories, I do not mean to endorse them all or to suggest precisely how each area should be treated. I wish only to emphasize, by a hypothetical contrast, the consequences of the current Court for democratic politics, and to see whether there might not be advantages in the shift from legal to political arenas.

AS THE WARREN COURT pioneered the effort to break down the barriers of racial discrimination, so its hypothetical successor might now be pioneering the effort to break down sex discrimination. Such a Court might approach reproductive freedom, not only as a matter of privacy but also as one of sexual equality, with very different consequences. Public financing of abortion, for example, might well be required, at least if public programs cover obstetric care.

There are many other examples. Our criminal justice system deals inadequately with domestic violence, sexual harassment, rape, and abuses in the production and use of pornography It would not be difficult at all to imagine a constitutional attack, rooted in the principle of equal "protection" of the law, on police practices that fail to protect women against domestic violence and other forms of sexual violence. Consider as well current rules of family law, which ensure that after divorce the welfare of most men will increase dramatically, while the welfare of most women will decrease correspondingly. (In California, for example, a man's standard of living increases by 42 percent after divorce, while a woman's falls by 73 percent.) The rules do not reward but rather punish women for their contributions to child care and housework.

Such a Court might also want to scrutinize the methods and assumptions used in Social Security to compute benefits. Current rules favor people the more closely they come to traditional male career paths. The Court might demand changes in workplaces that continue to be structured on the basis of male norms and expectations; it might specifically require private firms to improve half-hearted child care policies. It might insist that companies stop excluding women who are fertile but not pregnant from jobs that involve hazards to fetuses. Without much imagination, all these problems could be seen as raising issues of sex discrimination.

A SUCCESSOR TO THE Warren Court might have extended rights against discrimination to other groups. As currently interpreted, the Constitution has little or nothing to offer to the handicapped, even when fenced out by innumerable practices made by and for the world of the able-bodied. The sexual privacy of gays and lesbians, let alone their right to marry or to raise children, is also unprotected. Probably the best current guess is that the Rehnquist Court would find discrimination on the basis of sexual orientation, including wholesale exclusions from government employment, to be unobjectionable as far as the Constitution is concerned. A different Court would have taken this issue more seriously

People who are homeless, poor, or starving have nothing to gain from the Constitution, as the Rehnquist Court interprets it. Another Court would have made at least some inroads on the distinction between positive and negative liberties, furnishing a degree of protection to the destitute. At a minimum, a different Court would have said that selective exclusions from funding programs need persuasive justification.

These issues are only examples of the impressive set of proposals for constitutional reform that might have arisen in a second Warren era. They would have created the same sorts of pressures, dilemmas, and opportunities that the Warren Court faced beginning in the 1950s. If the agenda seems overly ambitious, perhaps we might remember how much more ambitious were the changes that the Court introduced between 1950 and 1980.

But would a second Warren Court have been desirable? Some of the preceding proposals, such as using the equal protection clause to ensure better protection against domestic violence, would not have strained the Court's remedial competence or been likely to cause a political backlash. Some decisions, such as reducing discrimination in family law, would have been relatively easy to implement. But others, such as an active judicial posture in restructuring Social Security or protecting rights to food and shelter, would have strained the boundaries of constitutional interpretation, called for complex trade-offs not readily made in court, and perhaps generated so much opposition as to be self-defeating. Such decisions would not necessarily have produced consensual, durable policy changes. Recent history suggests that some judicial victories stimulate complementary political energies. Others mainly stimulate a tide of reaction that swamps the effect of the court rulings.

In any event, because of the Court's current orientation, these issues will now be resolved through representative politics rather than the judiciary. If the Court plays any role, it most likely will become an obstacle to change, not an ally or a catalyst of it.

Judicial Defects, Democratic Possibilities

With the Court's conservative turn, what have we lost? We will have constitutional conflicts, just as before, but now the setting for resolving those conflicts will shift increasingly to the political arena.

For supporters of a progressive constitutional agenda, the most important concern about this institutional shift is that majoritarian politics might block progress. A large purpose of constitutionalism is to protect rights that are at risk in politics. Some argue that if it were not for the courts, we would not have had school desegregation, the one-person one-vote decision, and many of the civil rights advances of the Warren era. And while the argument would have to be quite elaborate, the same considerations might justify, in at least some cases, an aggressive role for a new liberal Court.

But a liberal Court is not now a political possibility. Besides, there may be significant advantages to the institutional shift. We ought to recall that during the Progressive Era and the New Deal, the Supreme Court was mostly hostile to reform but it was unable to stop it, and its very hostility may have been a stimulant. In the third great wave of reform in this century -- the environmental, consumer, and antidiscrimination movements of the 1960s and 1970s -- by far the most important changes, of both degree and kind, came from Congress. The courts played a subsidiary role. There are several lessons here.

Efficacy. Judicial decisions are of limited efficacy in bringing about social change. Study after 1 study has reached this basic conclusion. Brown itself is usually taken as a counterexample, but as Gerald Rosenberg demonstrates in his forthcoming The Hollow Hope, it is the most conspicuous confirmation of the point. Ten years after the decision, no more than about two percent of black children in the South attended desegregated schools. Not until 1964, as the Congress and executive branch became involved, did widespread desegregation actually occur. Complex social changes pose difficulties that Courts are usually ineffective in surmounting.

Roe v. Wade may be another illustration of the illusions of court-ordered progress, though the picture here is mixed. Undoubtedly, the decision dramatically increased women's access to safe abortions and helped to give legitimacy to the practice. Surprisingly, however, it did not dramatically increase the actual number and rate of abortions, as Hyman Rodman, Betty Sarvis, and Joy Walker Bonar have shown in their study, The Abortion Question. Moreover, Roe may have had harmful political effects. First, by withdrawing the abortion issue from representative political institutions, it prevented the achievement of political compromises. And, second, by spurring opposition and demobilizing supporters, it helped to shift the political momentum to the antiabortion movement.

The extraordinary public reaction to the Webster decision and the ensuing political mobilization of pro-choice groups provides support for this view. The Court's partial retreat from Roe is awakening the women's movement in a way that will probably have more favorable and fundamental long-term consequences for sexual equality than any liberal Court ruling could have produced. I am not suggesting that Roe was necessarily wrong, either as a matter of constitutional interpretation or as a matter of principle. But I am saying that its effectiveness has been limited, largely because of its judicial source.

Of course, judicial review has sometimes accomplished considerable good and introduced important changes into American society. We might distinguish here between two kinds of decisions. If the Court issues a simple "No" -- forbidding, for example, minimum wage laws, government censorship, or affirmative action -- it is likely to be quite effective. But if the Court asks some institution to undertake large-scale social reform -- to desegregate the schools, to improve conditions in mental asylums, to provide shelter and food, to reapportion state legislatures -- its effectiveness will usually be limited. Here judicial action may be necessary, but it is not sufficient; the court needs help from others. For example, the reapportionment decision was successful, but this was largely because there was enough 2 political will to bring about change. It is important to remember that liberal democracies without judicial review, such as Great Britain and until recently Canada, have also achieved many of the civil rights and civil liberties protections that we have in the United States. The post-Warren Court focus on the rulings of the Supreme Court has often been myopic. The fate of civil rights and civil liberties in a democracy depends far more fundamentally on the character of our political and social life than on the nine justices.

Democracy and citizenship. Reliance on the courts diverts political energies and resources from democratic channels. The substitution of litigation for politics has large costs. Citizen mobilization is a public good, inculcating political commitments, broader understanding, and the practice of citizenship. Martin Luther King may well have been a more important source of constitutional change than all of the Warren Court's race decisions.

In any case, political channels are often a better channel for sensible and effective reform. Individual preferences and their intensities can more easily be reflected in mutually advantageous compromises. Furthermore, the shift of constitutional politics out of the courts may have the healthy effect of requiring Congress, the President, and the states to deliberate on the important questions of self-government and carry out their own obligations of fidelity to the founding document.

The narrowing focus of adjudication. When confronting complex social problems, courts are rarely expert in the areas at hand, and the focus on the litigated case makes it hard for judges to understand the complex systemic effects of legal intervention. A decision to require expenditures on school busing, for example, might divert resources from services with an equal or greater claim to the public purse. Legal thinking and legal procedures are most comfortable with ideas inherited from the tradition of compensatory justice. On the compensatory model, A injures B, and B must make A whole by making payment. But this model is ill-suited to many issues. Consider the many examples of pollution that harm numerous people to a small degree. Here the purpose of legal controls is not to ensure compensation but to manage and reduce risks. The inevitability of complex trade-offs makes a rights-based approach highly unrealistic. Similarly, discrimination is usually not the commission of acts of discrimination by identifiable actors to identifiable victims. The more basic problem is that systems of subordination need to be reformed. Adjudication is ill-adapted to undertaking the necessary changes.

These criticisms of the judiciary are hardly novel. Though voiced principally by conservatives in the last decades, analogous complaints played a major role during the New Deal. It would have seemed peculiar then to suggest that social reform on behalf of the disadvantaged should come from the courts. Indeed, the rise of modem regulatory agencies reflected a belief that the judiciary lacked the will, the means, and the democratic mandate to bring about social reform on its own. The period that we are entering will see a similar constellation of ideas.

Above all, we need to recognize that the Supreme Court is not the only governmental institution charged with fidelity to the Constitution. Crabbed understandings from the Court are nothing to be pleased about, but if other institutions can pick up the slack, the shift from the courthouse to the statehouse will have many advantages. Legislators, executive officials, and even citizens are also responsible for upholding constitutional principles. If the Court interprets the Constitution too narrowly, this responsibility becomes all the more insistent.

If we are to pursue constitutionally grounded social reform outside of the courts, on what institutions might we rely? There are many possibilities. In the past decade, states and localities have shown great initiative and imagination, going well beyond the Supreme Court and Congress to enact aggressive measures forbidding discrimination on the basis of disability, sex, and sexual orientation. Nationally, the principal civil rights gains have occurred through legislative action to bar discrimination on the basis of sex, disability, age, and race.

The major sources of national legislative power here are the commerce clause -- granting Congress authority to regulate all actions having a significant effect on interstate commerce -- and, perhaps most notably, the great underused provision of the Constitution, section 5 of the Fourteenth Amendment. The Fourteenth Amendment, of course, has been the source of the overwhelming majority of the important Supreme Court civil rights and civil liberties decisions, including the application of the Bill of Rights to the states, Roe v. Wade, and all discrimination cases. The amendment's last sentence says that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Congress has rarely taken up the invitation. Indeed, the judicial rather than legislative enforcement of the Fourteenth Amendment may qualify as the most profound irony in the history of American constitutionalism.

The Supreme Court itself, however, has concluded that congressional power under section 5 is extraordinarily broad. Indeed, the Court has permitted Congress to invoke section 5 to proscribe practices that the Court has upheld. In permitting Congress to invalidate literacy tests, for example, the Court explicitly ruled that under section 5 Congress could strike down practices the Court would permit.

This conclusion turns out to be no puzzle if we recognize that the Court's decisions reflect not only substantive theory but also institutional constraint. Precisely because it lacks a democratic pedigree, the Court is sometimes unwilling to enforce the Constitution as vigorously as it would if it were elected. Congress faces no such constraints. Ironically, the Court might well find that Congress acted within its constitutional authority to overturn the Court's own restrictive readings of the Constitution.

We are now seeing important efforts in this direction. Bills recently introduced in Congress would reject the Supreme Court's interpretation of federal civil rights statutes and to some extent the Court's reading of the Constitution itself. If enacted, these measures might well go beyond anything that liberal judges could have produced.

In many respects, the current position of the Supreme Court is akin to that of its predecessor in the New Deal. As then, constitutional politics through the judiciary is unlikely to advance liberal causes. But neither should a conservative Court arrest their progress. The Court's shift in direction might be taken above all as an opportunity -- an opportunity to bring constitutional politics out of the judiciary into the democratic arena, where a more generous understanding of freedom and equality may prevail.

About the Author

Cass R. Sunstein is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago Law School and the author of more than a dozen books, including After the Rights Revolution, Designing Democracy and most recently, The Cost-Benefit State.